What Are Suspended Sentences and How Are They Changing In 2026

What is a suspended sentence?

A suspended sentence means that a custodial sentence (a term of imprisonment) can be suspended for a certain period. As a result, an offender is not sent immediately to prison. Within the suspended period, no further offences must be committed, as this is considered a breach and can result in the ‘activation’ of the suspended sentence. There may also be certain requirements set down by the court, which must be complied with.

The requirements can vary depending on the case, however, they are likely to consist of:

• A requirement to undertake unpaid work
• A requirement to participate in a rehabilitation activity requirement (an activity that reduces the prospect of re-offending)
• A requirement to attend an accredited programme
• A prohibition from engaging in certain activities
• A requirement for a curfew and / or an exclusion from a certain area
• A requirement to reside at a specified address
• A prohibition from travelling abroad
• A requirement for mental health treatment
• A requirement to access drug rehabilitation and / or an alcohol treatment requirement
• A requirement for electronic monitoring

If there is a failure to comply with any of the conditions or requirements imposed by a suspended sentence, the offender will be given a warning. If a second breach occurs within the next 12 months, the offender will be returned to court.

When can a suspended sentence be imposed?

A suspended sentence can be imposed if the court is satisfied the seriousness of the offence merits a custodial term, but there are other factors relating to the offence, or offender, which means the sentence can be suspended. If the sentence is below 12 months, the assumption is it will be suspended. Whether a sentence was suspended used to be a matter of judicial discretion, and the sentencing guidelines had to be considered as part of that discretion.

The following factors indicate when it may be appropriate to suspend a custodial sentence:

• There is a realistic prospect of rehabilitation in the community;
• The individual does not present a high risk of reoffending or harm;
• There are strong personal mitigating factors;
• When immediate custody will result in a significant harmful impact on others

The history of suspended sentences

• The introduction of suspended sentences in England and Wales was brought into effect by the Criminal Justice Act in 1967.
• The Criminal Justice Act 1991 required ‘exceptional circumstances’ in a case, for a court to exercise its power to suspend a sentence.
• The Criminal Justice Act 2003 introduced the ‘Suspended Sentence Order’. This meant that a suspended sentence could only be imposed for prison sentences that were less than 12 months in length.
• The Legal Aid, Sentencing and Punishment of Offenders Act 2012 increased the maximum length of sentences that could be suspended to two years, for a period of up to two years.

Changes to suspended sentences coming into effect

The Sentencing Act 2026 (formerly the Sentencing Bill 2025) has made changes to the way suspended sentences operate and the rules governing their imposition.

The changes are among a number of measures introduced to reduce the pressure and demand on prisons and address the prison capacity crisis.

Extending suspending sentences

The previous legislation permitted suspension of prison sentences with a maximum length of 2 years, for a period of up to 2 years.

The new legislation extends the courts’ powers meaning that they will be able to suspend sentences of up to 3 years in length.

How long a sentence can be suspended for, will depend on the length of the custodial sentence. For a sentence of up to 2 years, the courts will continue to be able to suspend this for 2 years. However, if a sentence is over 2 years, but less than 3 years in length, the court can suspend the sentence for 3 years. Any requirements imposed can only be in effect for a maximum of 2 years, so the final year of a 3-year suspended sentence will not include any requirements.

Presumption to suspend short sentences

The Sentencing Act is also introducing a presumption for courts to suspend short custodial sentences of 12 months or less.

This does not mean that Judges will no longer be able to impose custodial sentences of 12 months or less. There are certain instances, where it will be necessary to impose such a sentence. For example, where an individual would be at significant risk of physical or psychological harm, such as a domestic abuse victim. Other scenarios which may warrant a short custodial sentence would be a breach of a restraining or stalking protection order, a breach of a community order or a breach of a suspended sentence order.

Therefore, Judges will have the power to impose short custodial sentences where a suspended sentence would not be appropriate. However, generally, there will be more use of suspended sentences in place of 12-month prison terms. The purpose of this new presumption will be to focus on rehabilitation in the community, rather than the use of short prison terms.

Legal Advice from Hodge Jones & Allen Solicitors

Our criminal defence team advises on a range of offences and if your matter ends up in court, we’ll guide and represent you through the entire process. We encourage anyone seeking legal advice in this area to contact our team on 0330 822 3451 or request a callback.